Symons v Whittington [2018] NSWDC 239

District Court New South Wales

Medium Neutral Citation: Symons v Whittington [2018] NSWDC 239 Hearing dates: 13 – 17, 20 – 23 August 2018 Date of orders: 23 August 2018 Decision date: 23 August 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: Verdict and judgment for the defendant against the plaintiff. Plaintiff to pay the defendant's costs Catchwords: CIVIL – TORTS – Professional negligence of medical practitioner

CIVIL – CONTRACT – Breach of contract of medical practitioner

CIVIL – LIMITATIONS – Limitation of Actions Act 1974 (Qld) s 11(1) – Whether contract made in Qld – Whether tortious acts occurred in Qld – Last treatment of patient by doctor more than 3 years before action commenced Legislation Cited: Forensic Disability Act 2011 Limitation of Actions Act 1974 (Qld) Cases Cited: Gerace v Auzhair Supplier Pty Ltd [2014] NSWCA 181 Category: Principal judgment Parties: Kerri Annette Symons (Plaintiff) Mark Anthony Whittington (Defendant) Representation: Counsel: In person (Plaintiff) Mr M Hutchings (Defendant)

Solicitors: In person (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2016/247224 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is a very complex case, and a very sad case. The plaintiff, Ms Kerri Annette Symons, commenced these proceedings by a statement of claim filed here at Lismore on 17 August 2016. The plaintiff has not at any time acted through a lawyer. Perhaps that is because the plaintiff has a law degree, and practised as a solicitor from 1979 until 2003. The last time she held a practising certificate was in 2003, and the inference to be drawn is that, as far as New South Wales is concerned, her practising certificate expired on 30 June 2003. 2. The plaintiff read law at the Australian National University, and was admitted to practice in both New South Wales and Victoria. In 1979, she started working for a solicitor, Mr David Crapp, at West Ryde. Mr Crapp had a general practice and the plaintiff worked for him for three years. She then moved to Melbourne and worked with Barker Harty, who had their offices in Collins Street, Melbourne. The plaintiff worked for that firm for just under three years. In 1986 she read for admission to the Bar of Victoria. The plaintiff told me that she did a bar admission course, and read with Mr Philip Kennon QC, but appears not to have practised as a barrister, because of her marrying for the third time in 1987. She then kept her practising certificate but worked for companies owned by her or by her husband. She divorced in 1991, but still appears to have worked for her own companies until 1995, when she started working for Delduca and Associates in Pitt Street, Sydney. The plaintiff worked for that firm for seven years until 2002. In the first half of her work as a lawyer, the plaintiff practised in family law, and in the latter part of her practice, she worked in construction law. 3. It is clear, however, the plaintiff was not involved in much, if any, common law litigation. The way these proceedings have been conducted shows that the plaintiff has lost most of the skills that she would have developed to be a family law practitioner, but that may be because of the mental health condition which she has, which lays behind the current proceedings.